Litigation Commons^™

Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.

While this shift from dispute resolution in courts—the …

Social Media: Children’S Lawyer’S Friend And Foe, Jennifer Baum, Sarah N. Fox

Faculty Publications

(Excerpt)

Social media is taking over the globe. The Pew Research Internet Project states that in the United States, 95 percent of 12- to 17-year-old children are online. Teenagers are also sharing more and more information online: 91 percent of teenagers post a photo of themselves, 92 percent post their real name, and 71 percent post the city or town where they live. “Teens Fact Sheet,” Pew Res. Internet Project (Sept. 2012). This information, in the wrong hands, can be harmful to a child. The Children’s Online Privacy Protection Rule, designed to safeguard children’s information and access online, is a …

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Akron Law Faculty Publications

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Fire Service Leadership And The Impact Of Civil And Criminal Litigation On Officer Recruitment And Retention, Cameron Edward Borchert

Online Theses and Dissertations

Litigation in any industry is a driving force in the need for change management. There are very few industries that have not felt the direct effects of liability and litigation. For generations the fire service has enjoyed a sort of protected status as a result of the general good will the public has offered. There are many reasons for this, not the least of which being that firefighters routinely will risk their lives in the service of others. However, in recent years, fire departments across the United States have experienced increasing incidents of civil and criminal litigation. The core issue …

Appraisal Arbitrage And The Future Of Public Company M&A, Minor Myers, Charles R. Korsmo

Faculty Scholarship

No abstract provided.

College Sports And The Antitrust Analysis Of Mystique, Sherman J. Clark

Articles

In this response to Marc Edelman’s Article, The District Court Decision in O’Bannon v. National Collegiate Athletic Association: A Small Step Forward for College-Athlete Rights, and a Gateway for Far Grander Change, 71 WASH. & LEE L. REV. 2319 (2014), I highlight a set of conceptual issues that must be confronted if courts are to craft a coherent and stable body of law governing the NCAA’s treatment of student-athletes. First, the value of the product at issue here—college sports—is intimately connected with the nature of the labor used to create it. Second, the nature of that value is amorphous, contingent, …

Litigation Isolationism, Pamela K. Bookman

Faculty Scholarship

Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts’ desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of “avoidance” in fact frequently undermines not only these values but also other significant U.S. interests by continuing to interfere with foreign relations and driving plaintiffs to sue in foreign courts.

This Article offers four contributions: First, it focuses the conversation about transnational litigation on those doctrines designed to avoid it—that is, doctrines that …

From Commitment To Compliance: Enforceability Of Remedial Orders Of African Human Rights Bodies, Roger-Claude Liwanga

Brooklyn Journal of International Law

Over the last seven decades, there has been a global proliferation of international and regional human rights tribunals. But with no coercive power to enforce their judgments, these international tribunals rely either on the good faith of the State parties or on the political process for the implementation of their remedial orders. This nonjudicial approach to enforcement has showed its limits, as most State parties are noncompliant with international judgments to the detriment of human rights victims. This article recommends a new approach involving the judicialization of the post-adjudicative stage of international proceedings as an avenue to increase the enforceability …

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton

Cornell Law Faculty Publications

The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Publications

No abstract provided.

They Had Nothing, Charles Wilkinson

Publications

No abstract provided.

Fixing Hollingsworth: Standing In Initiative Cases, Karl Manheim, John S. Caragozian, Donald Warner

Loyola of Los Angeles Law Review

In Hollingsworth v. Perry, the Supreme Court dismissed an appeal filed by the “Official Proponents” of California’s Proposition 8, which banned same-sex marriage in California. Chief Justice Roberts’ majority opinion held that initiative sponsors lack Article III standing to defend their ballot measures even when state officials refuse to defend against constitutional challenges. As a result, Hollingsworth provides state officers with the ability to overrule laws that were intended to bypass the government establishment—in effect, an “executive veto” of popularly-enacted initiatives.

The Article examines this new “executive veto” in depth. It places Hollingsworth in context, discussing the initiative process …

Remodeling Federal Medical Malpractice Act: A Possible Improvement To The Affordable Care Act, Nancy Kubasek, Tiffany Durham

Loyola of Los Angeles Law Review

During the debates about healthcare reform, the Congressional Budget Office found that federal medical liability reform could drastically reduce federal budget deficits, yet political and legal scholars could not reach agreement about the best way for the Patient Protection and Affordable Care Act (PPACA) to provide such reform. Instead, provisions were made to fund state level demonstration projects. The law that is considered one of the most successful models to date of conventional tort reform is the Medical Injury Compensation Reform Act of California. This Article exams that legislation and discusses how we might use what can be learned from …

Frenemies Of The Court: The Many Faces Of Amicus Curiae, Helen A. Anderson

Articles

Ask any lawyer what an "amicus curiae" is, and you will be told that the term means "friend of the court." The term has positive, even warm, connotations. Amicus briefs provide additional information or perspectives to assist courts in deciding issues of public importance. Interest groups, law professors, and politically engaged lawyers are happy to participate in important cases through such briefs. Amicus curiae participation is defended as democratic input into what is otherwise not a democratic branch of government.

Yet, amici curiae—nonparties who are nevertheless advocates, who are not bound by rules of standing and justiciability, or even rules …

There Is No Such Thing As Litigation: Access To Justice And The Realities Of Adjudication, Robert Rubinson

All Faculty Scholarship

Does a "contest by judicial process" describe litigation's "means and applications"? Overwhelmingly, no. Litigation is not about judges: it is about default judgments, settlements, plea bargains. It sometimes does not even involve judges at all. Litigation is not about trials: the amount of litigation that goes to trial is infinitesimal. It is not about "process": the process is so minimal that to dignify it with that term stretches the word beyond recognition. It is not a "contest": it is an exercise where one side has no plausible chance of winning, especially since that side either has no lawyers or lawyers …

The Market For Leadership In Corporate Litigation, Jessica M. Erickson

Law Faculty Publications

Conventional wisdom has long held that leadership decisions in corporate litigation are best left to the lawyers. Even as the world of corporate litigation has changed dramatically, courts have consistently relied on the lawyers themselves to decide who among them will control litigation decisions. As a result, leadership decisions in corporate litigation are almost always made in private negotiations and back room deals. This Article pulls back the curtain on these decisions, using empirical data to conduct the first in-depth examination into the market for leadership in corporate litigation. This examination reveals a market that bears little resemblance to the …

Marriage Equality Comes To America, Carl W. Tobias

Law Faculty Publications

Marriage equality is sweeping the nation. Four appeals courts recently affirmed district judges’ opinions which invalidated numerous state laws proscribing same-sex marriage. Yet, the Sixth Circuit reversed a number of district jurists, prompting a circuit split that provoked Supreme Court resolution. Because marriage equality’s status is unclear, this piece assesses disposition of the litigation and recommends how to clarify marriage equality.

For Men Only: A Gap In The Rules Allows Sex Discrimination To Avoid Ethical Challenge, Michelle N. Struffolino

American University Journal of Gender, Social Policy & the Law

The billboard states: “Divorce: Men Only.” The reaction is one of confusion. Something just does not seem right. Isn’t this discrimination? Is the system willing to allow this message because the need to protect men’s rights in divorce outweighs the systemic and societal harms associated with the message?

Although this article focuses on the ethical issues associated with firms that exclude women from the pool of potential divorce clients, the existence of women only law firms is acknowledged. The analysis of the ethical issues raised by these gender specific firms is somewhat the same regardless of what gender is excluded. …

The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman

Faculty Publications

No abstract provided.